Substantiating your proportionality argument

The claim of “proportionality” is too often used as justification to shy away from potential discovery obligations. The following can frequently be used to justify this –

There are far too many documents

The cost is not proportionate

We can just claim proportionality to the court

The discovery rules are on our side here

These can all be valid ! However, it is important to be able to substantiate your proportionality argument, as the time and cost of discovery can quickly become disproportionate to the needs of the case.

Claiming your discovery obligations are disproportionate is not justification for only considering methods that may not be effective in finding the relevant information. Many of these costs can be disproportionate, but at the same time can involve unnecessary costs that can be reduced by exploring more effective options to approach discovery.

The objective of the discovery process should be to get only what you need and do so it a way that is quick, cost effective and accurate. To achieve this it is important to consider all potential methods and strategies.

Where do we start?

The discovery checklist provides parties with a road-map to co-operate over a proportionate and reasonable search for documents, that is specifically tailored to the matter at hand.

The first requirement of the discovery checklist is that parties are expected to “assess and discuss with the other parties whether that estimated cost is proportionate to the sums in issue or the value of the rights in issue in the proceeding”.

To effectively address the requirements of the checklist, it is important to be informed about your documents at an earlier stage. This work earlier in the process will save considerable time and cost later in the matter.

Addressing discovery proportionately (and early)

It is important at an early stage to develop a proportionate discovery order that focuses the discovery process on finding and producing the information that matters most. These discussions should take place at the outset of a matter and before any considerable cost has been incurred.

Those assessing this information at an early stage will be in a stronger position when they commence discussions with the other parties. Too often parties fail to put sufficient time into devising methods and tools required to achieve a proportionate approach. It can be helpful to substantiate this approach by identifying potential volumes from the proposed date ranges, key individuals and search terms.

Once a discovery order has been agreed it is still important to continue to work through the practical arrangements with the other side to ensure discovery is proportionate and reasonable. Much of the practical work and potential cost is incurred after the discovery order has been set.

These days I am helping an increasing number of firms to substantiate a proportionality argument. This could include disputing the approach suggested by the other party, or helping a party suggest more effective and proportionate methods. I will provide some practical examples in future posts of how I have worked with legal teams to help them tackle proportionality with their discovery requirements.

If you are going to seek a proportionate discovery order, then be sure that you can substantiate your proportionality argument.